An execution based on withheld evidence and an incompetent lawyer

Steven Van McHone was extremely drunk when he killed his mother, but his lawyer wasn't given evidence to show it. He is scheduled to be executed early Friday.

In the early morning hours of June 3, 1990, Steven Van McHone, then 19 years old, shot and killed his mother, Mildred Adams, with a revolver after a backyard argument. He entered the house and was confronted by his stepfather, Wesley Adams, who wrestled the gun away. McHone then went into a bedroom and returned with a shotgun and shot and killed his stepfather. His stepbrother, Air Force Capt. Wesley Adams, subdued McHone, told him to lie on the floor, and called the police. McHone began to cry, "Oh my God, what have I done?" and asked Adams to kill him.

McHone's mother had married three times. She first married Wesley Adams Sr. and had two children. She divorced Adams and married Bobby McHone. Steve McHone, the accused, was a child of this second marriage. Bobby McHone testified that during this marriage he stayed drunk, gambled and "did everything wrong." He gave his wife Mildred "no peace whatsoever." They were divorced after 10 years and agreed that each would take Steve in alternating years. Mildred remarried her first husband, Wesley Adams.

McHone's childhood in the alternate years with his father was marked by deprivation and abuse. He lived in a series of rundown rooming houses and motels, sometimes sleeping in bars while his father drank. Steve began to drink as a young teenager.

Under North Carolina law, voluntary intoxication can be a defense to first-degree murder by negating the elements of premeditation and deliberation. This was McHone's defense. This is his story.

In June of 1990, Steven McHone was living with his mother and stepfather. His stepbrother, Wesley Jr., and his stepbrother's wife were visiting. On the afternoon of June 2, preceding the homicides, Steven McHone and his friend Jimmy McMillian, along with Jimmy's girlfriend, Tammy Sawyers, went to Mount Airy and bought a pint of Jack Daniels. McHone and McMillian drank it down. They then went to a Pizza House in Winston-Salem for supper. Each of the two young men drank a pitcher of beer. They bought more Jack Daniels and headed out for a party in Mount Airy. They were stopped on the way and McMillian was arrested for drunk driving. The officer looked at McHone, and told Tammy Sawyers to drive. McHone seemed drunk when he arrived at the party. His girlfriend (whom he had met at a Narcotics Anonymous meeting) asked what he was on. He said "a couple of hits of acid." He continued to drink and became maudlin, saying how nobody loved him. He then became belligerent and pointed a gun at the party's host, who was dating McHone's girlfriend that night. Tammy Sawyers was asked to drive him home.

On the way, they bought a six-pack of beer and McHone drank two cans while Tammy drove. This was the testimony on McHone's behalf by McMillian and Tammy Sawyers. But there was contrary testimony, more weighty to the jury.

McHone's half-brother Wesley Adams Jr. did not see "any impairment" when he wrestled with McHone over the shotgun and testified that "the only indication that I had of drinking was the fact that my father told him to go to bed and sleep it off."

Three law enforcement officials on the scene testified that McHone "had been drinking" but was "not so drunk he did not know what he was doing."

Most telling perhaps was the testimony of two psychiatrists who subsequently examined McHone. Dr. James Groce, the state's psychiatrist, testified that McHone's intoxication "does not appear to be severe enough for not being responsible for his actions." Dr. John Warren, McHone's expert, testified that McHone was intoxicated, but Dr. Warren could not state "how impaired" McHone had been.

The Surry County jury rejected McHone's defense and found him guilty of first-degree murder of his mother and stepfather.

The case moved on from the guilt phase to the punishment phase, where the jury balances all aggravating factors against the mitigating factors.

The heavy factor against McHone was that he was a "multiple killer"--each murder was part of a "course of conduct" that included "other crimes of violence against other persons." This aggravating factor more than trumped a series of 11 mitigating factors: his youth, intoxication, sordid childhood, lack of prior violent crimes, etc. The jury recommended death. The North Carolina Supreme Court affirmed the conviction and sentence, and the United States Supreme Court refused to review the case.

At this stage, there are new avenues available to attack the death sentence. North Carolina authorizes the prisoner to file a Motion for Appropriate Relief in the trial court alleging errors of constitutional dimension--usually inadequate counsel, prosecutorial misconduct or racism. Appeal is allowed from the trial court to the Supreme Court from an adverse decision. When all fails in the state system, the prisoner can file a petition for habeas corpus in the federal district court with appeals to the United States Court of Appeals, then on to the Supreme Court.

McHone exhausted all these remedies with his new lawyers--Cynthia Adcock and Erwin Chemerinsky of the Duke Law School and Kenneth Rose of the North Carolina Center for Death Penalty Litigation.

The new lawyers investigated and made two serious allegations: that the state had withheld evidence helpful to McHone and that his earlier appointed counsel had been inadequate.

In Brady v. Maryland, the Supreme Court held that due process requires state agents to disclose evidence favorable to the defendant. The Constitution is violated when evidence is suppressed, either willfully or not, to the prejudice of the defense. Here, North Carolina failed to reveal evidence from seven witnesses concerning McHone's intoxication--all to his detriment.

Foremost was the evidence of his stepbrother, who had testified in court that McHone was not impaired and did not smell of alcohol. But he made statements to the police at the time of the homicides that McHone was "obviously drunk" and had a "strong odor of alcohol." Had this evidence been disclosed, the defense on cross-examination could have undercut his testimony.

A deputy sheriff testified at trial that McHone was "walking, talking and acting in a normal fashion," but he told the S.B.I. on the morning of the murders that McHone had a "strong odor of alcohol" and was "not steady on his feet"--more useful evidence for cross-examination.

But there was more than withholding of evidence. There was the denial of effective assistance of counsel. The test for an ineffective assistance of counsel claim is two-fold: First, the counsel's performance must fall below an "objective standard of reasonableness," i.e. the "prevailing professional norms," and then the defendant must show prejudice from the unreasonable performance.

In a post-conviction affidavit, Warren--the defense's psychiatrist--wrote, "[H]ad I been informed of this information my testimony would have been substantially different . . . I would have testified that McHone's mind and reason were so overrun as to render him utterly incapable of forming the specific intent to kill." Groce gave similar exculpatory testimony when informed of the blood alcohol level.

Further, McHone's trial counsel failed to interview McHone's substance abuse counselor, who testified post trial that McHone's actions that night "were very out of character and would not have been committed unless McHone was severely intoxicated."

The courts turned a blind eye on the powerful post-trial evidence of intoxication. Although he probably lacked the premeditation and deliberation necessary for first-degree murder and the death penalty, McHone is scheduled to die.